Report 2011 - EFTA Court

JOINED CASES E-4/10, E-6/10 AND E-7/10
Principality of Liechtenstein
Reassur Aktiengesellschaft
Swisscom RE Aktiengesellschaft
Joined Cases E-4/10, E-6/10 and E-7/10 Principality of Liechtenstein, Reassur Aktiengesellschaft,
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Swisscom RE Aktiengesellschaft v EFTA Surveillance Authority
v
EFTA Surveillance Authority
(Action for annulment of a decision of the EFTA Surveillance Authority – State
aid – Special tax rules applicable to captive insurance companies – Notion of
undertaking – Selectivity – Existing aid and new aid – Distortion of competition
and effect on trade – Recovery – Legitimate expectations – Legal certainty –
Obligation to state reasons)
Judgment of the Court, 10 May 2011 .......................................................... 22
Report for the Hearing................................................................................ 79
1. Under EEA competition rules,
the concept of an undertaking
encompasses every entity engaged
in economic activity, regardless
of its legal status and the way in
which it is financed. Any activity
consisting in offering goods or
services on a given market is an
economic activity.
2. in the case of State aid
schemes, it is legitimate for ESA
to confine itself to examining
the general characteristics of a
scheme without being required to
examine each particular case in
which it applies. For the purposes
of applying Article 61(1) EEA
to an aid scheme, it is sufficient
Summary of the Judgment
that the scheme benefits certain
undertakings, a finding not called
into question by the fact that it may
also benefit entities which are not
undertakings.
3. The definition of aid is more
general than that of a subsidy.
The concept of aid not only
includes positive benefits, such
as subsidies themselves, but also
measures which, in various forms,
mitigate the charges which are
normally included in the budget of
an undertaking and which, thus,
without being subsidies in the strict
sense of the word, are similar in
character and have the same effect.